DOL guidance spotlights FLSA, FMLA, and visa program retaliation

On March 10, 2022, the U.S. Department of Labor (DOL) Wage and Hour Division (WHD) issued guidance on forms of prohibited retaliation under various laws the agency enforces, including the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), immigration visa programs, and other laws and executive orders. The new guidance suggests the agency will focus on retaliation as an enforcement priority in the upcoming year. It will be all the more important for employers to keep an eye out for protected activity and to tread carefully before taking adverse employment action.

New guidance

The DOL guidance provides a general overview of the major antiretaliation provisions the agency enforces, as well as a number of hypothetical situations illustrating violations. It’s a good primer for those who might be unfamiliar with (or rusty with) the protections, and it’s a good reminder of the several contexts in which retaliation claims could spring up.

FLSA

For the FLSA, the DOL provides two examples of unlawful retaliation. In the first example, a cook makes a confidential phone call to the WHD with questions about overtime pay. Word spreads among staff about the cook’s call and, when the manager overhears staff talking about the call, she terminates the cook.

The example reminds employers that “protected activity” is broad. The cook wasn’t lodging a complaint against the employer. He was asking questions about overtime more generally. Yet, the DOL considers the cook’s request for information protected activity.